Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court No. 2016-CR-00133
MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No.
0093945, Attorney for Plaintiff-Appellee
E. MICHEL, Atty. Reg. No. 0087773, Attorney for
1} Marshall Wehner appeals from his conviction and
sentence following a no-contest plea to one count of heroin
possession, a fifth-degree felony.
2} In his sole assignment of error, Wehner contends
the trial court erred in overruling his motion to suppress a
heroin capsule found in his sweatshirt pocket during a search
conducted by a Miamisburg police officer. Wehner argues that
the officer unlawfully seized and searched him without
probable cause or reasonable suspicion and without his
consent. Therefore, he maintains that the heroin capsule
should have been suppressed. For its part, the State asserts
that Wehner voluntarily consented to the officer's search
of his pocket and that the trial court properly overruled the
suppression motion on that basis.
3} The only witnesses at the suppression hearing
were Wehner and Kevin Current, the officer involved. Current
testified that he saw Wehner walking through an alley while
on patrol on October 1, 2015. Current knew Wehner from prior
encounters. He previously had engaged in numerous
conversations with Wehner, who on several other occasions had
allowed the officer to search him for drugs.
4} On the day in question, Current had a suspicion,
based on information received from other officers, that
Wehner may have visited someone on the front porch of a drug
house. As a result, he approached Wehner on foot and
"started talking with him." Current first said
something like "Hey, Marshall, " and "normal
conversation" followed. Current testified that he did
not block Wehner's path, adivse him he was not free to
leave, or do anything to prevent him from leaving. Current
denied Wehner ever saying that he did not want to talk or
asking to leave. During their conversation, Wehner denied
being in possession of anything illegal. Current responded by
stating that he believed Wehner had purchased heroin and
asking for permission to search Wehner. According to Current,
Wehner consented to the officer "check[ing] him."
Current testified that Wehner then "started to reach
into his pockets to show * * * what was in his pockets,
basically." At that point, Current "told him keep
his hands out of his pockets and I'll check for
him." Current denied grabbing Wehner's arm or doing
anything other than telling Wehner not to "reach
in." Current then reached into Wehner's sweatshirt
pocket and retrieved a heroin capsule.
5} In his testimony, Wehner admitted knowing Current
and having had several prior encounters with the officer.
Wehner also admitted having given Current permission to
search him on prior occasions. With regard to the day in
question, however, Wehner stated that he did not feel
"free to leave" when Current approached him. He
claimed he was "afraid" and was "wanting to be
free to go." He believed that he would be
"grabbed" if he tried to walk away. Wehner also
testified that he denied Current's request to search him.
According to Wehner, he also attempted to show the officer
that he did not have "any weapons or anything."
Wehner testified that Current responded by grabbing his arm
and telling him not to move or to reach into his pockets. At
that point, the officer reached into Wehner's sweatshirt
pocket himself and found the heroin capsule. Wehner insisted
that he did not give Current permission to do so.
6} After hearing the testimony of Current and
Wehner, the trial court made the following factual findings
on the disputed issue of consent to search:
On the day in question, Officer Current asked the Defendant
if he was in possession of any drugs. The Defendant responded
that he was not in possession of any drugs. Officer Current
then asked him if he could check. Defendant then consented to
the officer checking. At that time the Defendant started to
put his hands into his center sweatshirt pocket -Officer
Current stopped him and told him he would check. Officer
Current then went into the Defendant's center sweatshirt
pocket and found the capsule that forms the basis of the
charges herein. The Defendant was not in custody or arrested
and permitted to leave.
The Defendant admitted that he had been searched previously;
that the previous searches were consensual and that during
the previous consensual searches, the Officer went into and
searched his pockets.
(Doc. #18 at 1-2).
7} Based on its factual findings, the trial ...